Lathrop & Clark, by Attorney Kirk D. Strang, 740 Regent
Street, Suite 400, P. O. Box 1507, Madison, Wisconsin
53701-1507, for the Board of Education of the Richland School District, referred to below as
the Board, the District
or the Employer.

ARBITRATION AWARD

The Union and the Board are parties to a collective bargaining agreement which was
in effect at all times
relevant to this proceeding and which provides for the final and binding arbitration of certain
disputes. The parties
jointly requested that the Wisconsin Employment Relations Commission appoint an Arbitrator
to resolve a grievance
filed on behalf of Lori Shaw, who is referred to below as the Grievant. The Commission
appointed Richard B.
McLaughlin, a member of its staff. Hearing on the matter was held on May 6, 1997, in
Richland Center, Wisconsin.
The hearing was not transcribed. After the hearing, the parties unsuccessfully attempted to
settle the matter
informally, and ultimately filed briefs and reply briefs by April 3, 1998.

ISSUES

The parties were unable to stipulate the issues for decision. I have determined the
record poses the following
issues:

Did the Board violate the collective bargaining agreement
when
it denied the Grievant the kindergarten aide
position at Doudna School?

If so, what is the appropriate remedy?

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RELEVANT CONTRACT PROVISIONS

ARTICLE II - MANAGEMENT RIGHTS

Section 1. The Board of Education possesses and
retains without limitation, the sole and exclusive right to operate
the school system and all management rights, subject to the provisions of this contract and
applicable laws. These
rights include, but are not limited to, the following:

. . .

J) To determine the level of performance of employees, and to
pass upon the efficiency and capabilities of
employees;

. . .

It is agreed that the Employer shall exercise its rights in a fair and
reasonable manner and that such rights and
powers shall not be used in conflict with . . . any provisions of this Agreement. . . .

ARTICLE VI - SENIORITY

Section 1. Seniority is herein defined for the
purposes of being a measure of an employee's right to a particular
job or to employment in relation to other employees by layoff classification. It shall be the
policy of the Employer
to recognize seniority in case of . . . promotions, transfers . . . as herein provided.

. . .

Section 4. Job vacancies, due to retirement, quits,
new positions, or transfers, shall be posted on the bulletin
board at each school building for seven (7) working days. Employees desiring to fill such
vacancies shall sign the
notice. Only those applicants who meet the prerequisites for the position will be considered.

The qualified applicant with the longest service shall be given the
first opportunity to qualify for the vacancy.
The Employer shall have the right to temporarily fill a job vacancy that is posted until it is
determined whether there
are applicants for the job from among the employees covered by this Agreement. If there
are no applicants from those
employees covered by this Agreement, nothing contained herein shall prevent the District
from offering the job to
any other District employee, or hiring a new employee for the job.

. . .

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BACKGROUND

The grievance challenges the Board's denial of a Kindergarten Aide position at
Doudna School to the
Grievant, and asks that the Grievant be put into the position and be made "whole for lost
wages."

The posting for the disputed position reads thus:

. . .

ELEMENTARY

Kindergarten Aide (Doudna)

Level III

6.75 hours/day (8:15 - 3:30)

Term position

Requirements:

- High School diploma

- Ability to communicate positively and
effectively with children, parents, building personnel

- Ability to maintain high level ethical
behavior and confidentiality of information relative to students and student
problems/behaviors

- Previous experience in directing specific
learning activities with young children

The posting was signed by Iris Peterson, Kelly Worthington, Cindy Olson, Ruth
Humphrey, Tina Wipprecht Davis,
Julie Ringlestetter and the Grievant. Peterson was the most senior of these applicants, but
withdrew her name from
consideration, thus leaving the Grievant as the most senior applicant and Olson as the next
most senior.

The decision to place Olson in the position was made by Elda Fry, the Board's
Elementary Supervisor. Fry
is responsible for overseeing the Board's programs from Early Childhood through Grade 6.
Fry oversees five
buildings, including Doudna. She is the immediate supervisor for teachers and aides in four
of those buildings, not
including Doudna.

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After the posting period for the Kindergarten Aide position had expired, Fry met with
Rachel Schultz, the
Board's Business Manager. Because each of the employes who signed the posting works a
varying schedule of hours,
Schultz calculated each employe's seniority. Schultz and Fry then reviewed each applicant's
qualifications in light
of the position description. One applicant was rejected at this point. The remaining
applicants were considered
initially by seniority. After Peterson had withdrawn her name from consideration, the
Grievant and Olson were the
only applicants Fry considered. At the time of the posting, the Grievant was classified as a
Cook and Olson was an
Aide at Lincoln Elementary School.

Fry then reviewed the Grievant's qualifications in light of the posting. Because she
was unaware of what,
if any, experience the Grievant had in the areas highlighted in the posting, Fry reviewed the
Grievant's personnel file
and resume. Neither of those documents stated any experience Fry considered relevant, and
she decided to phone the
Grievant at home. Fry made this call on July 24, 1996. She asked the Grievant three
questions. She made notes of
those questions and the Grievant's responses. Those notes read thus:

1. Have you had previous experience in directing special learning
activities with young children -- kgn. age?

Has done baby sitting in her home. Has not directed special
learning activities except with her own children
and reading to children she baby sat.

2. Have you had experience with preparing teaching materials?

"No, not really. I did plan some activities for Hot Lunch
Week
but couldn't carry them out due to a leave."

3. Have you had experience supervising groups of kgn. age
children?

Helped w/ Sunday School when she was 17. Didn't have the
responsibility of teaching the class, however.

She did not explain her questions to the Grievant, but simply asked them and listened
to the Grievant's unprompted
responses. She did ask the Grievant if there was anything else to add before she ended the
conversation. Fry was
aware that the Grievant made posters and ran a coloring contest to promote the hot lunch
program. Prior to making
this call, Fry believed the Grievant did not have sufficient experience to qualify for the
position and viewed the
conversation to confirm this belief.

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MA-9824

Fry served as Olson's evaluator prior to the posting at issue here. Fry did not
interview Olson or review her
personnel file before offering her the position sometime after the July 24 phone conversation.

The job description for "Teacher Aide" states the following "Qualifications" for the
position:

6. Such alternatives to the above
qualifications as the Board may find appropriate and acceptable.

7. Ability to perform all the work required
in the job.

The balance of the background will be set forth as an overview of witness testimony.

Elda Fry

Fry testified that she felt the three areas highlighted by the posting concerning
previous experience were
critical to the Kindergarten Aide position. She acknowledged that past postings for Aide
positions sometimes included
a requirement for previous experience and sometimes did not. She felt, however, that past
hiring decisions reflected
the "hit or miss" aspect of not requiring experience of Aide applicants. A teacher should
not, Fry stated, be expected
to have to train an Aide. Olson did not have prior school district experience as an Aide
when she was hired into the
position of Elementary Aide. Olson's prior experience is in the District's early childhood
program. In the school
year preceding the posting at issue here, Olson served as a one-on-one tutor.

Olson informed Fry of her interest in a Kindergarten Aide position several times
before and after the position
at issue here was posted. Olson initiated these conversations. The Grievant did not supply
Fry with material beyond
her signature on the posting. Fry never sought such materials, nor consulted with the
Grievant's immediate supervisor
before concluding she did not have the necessary experience to qualify for the Kindergarten
Aide position.

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MA-9824

The decision to hire Olson was solely Fry's. She felt that the requirement of
previous
experience would
assure that the applicant selected for the position would be able to immediately perform all
the student assessment and
supervision as well as educational support activities required of an Aide.

Fry noted the posting for the Kindergarten Aide position is not a boilerplate form, but
was created for that
position. She has required previous experience in some, but not all, prior postings for other
Aide positions. This
is the first grievance challenging the requirement of previous experience as a prerequisite for
an Aide position.

The Grievant

The Grievant has been employed as a Cook since 1988. She started at the District's
High School, but has
worked at Doudna for roughly six years. As Cook, she has been involved in a number of
promotional activities
including classroom presentations. Promotional activities have required the Grievant to
prepare posters and other
display materials in addition to classroom appearances. She has three children. In the
summer months, she takes care
of three children in addition to her own. The children she cares for range from under two
years old to eight years
old. Her summer child care duties require her to read to the children and to create and
supervise learning activities.
She must also supervise their play.

When in High School, the Grievant worked at a number of Bible Schools. In the
summer, she would attend,
as a pupil or a helper, perhaps three such schools lasting from one to two weeks each. She
performed essentially as
an aide to the Bible School teacher. The students in these classes ranged from the first
through third grade. When
she applied to the District to become a cook, she did not list her child care experience,
because it did not seem relevant
to the position she was applying for. She did not offer any material beyond the job posting
because she was unaware
any material was either required or desired.

Fry called her without prior notice on July 24, when the Grievant was busy caring
for
six children. She
estimated the conversation lasted ten to fifteen minutes, and she affirmed the accuracy of
Fry's summary of that
conversation. She noted she was confused by what Fry meant by "special learning
activities," and thought Fry might
be inquiring about experience in special education. She thought Fry's question about
"teaching materials" might refer
to office equipment.

She did not regard the July 24 conversation as an interview, and it did not occur to
her that her personal
experience handling children might be the sort of experience Fry was looking for. She did
not ask Fry what the
purpose of the call was, or to clarify any of Fry's questions.

Further facts will be set forth in the DISCUSSION section below.

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THE PARTIES' POSITIONS

The Union's Initial Brief

After a review of the evidence, the Union contends that the interpretive issue posed
under Article VI, Section
4, is "whether the Grievant was 'qualified' for the position."

The Board's determination that the Grievant was not qualified rests on Fry's
conclusion that she lacked
"(p)revious experience" regarding "directing specific learning activities with young children;"
"preparing teaching
materials accurately and promptly;" and "supervising groups of students." That conclusion
is, the Union contends,
flawed since it presumes "previous experience" has a significance beyond being one of many
considerations relevant
to determining qualifications and since the Grievant does have relevant experience.

The Union contends that Fry failed to impartially seek the Grievant's qualifications.
Rather, the manner in
which Fry questioned the Grievant "suggest(s) strongly that Ms. Fry was not particularly
interested in finding out
what Ms. Shaw's qualifications were, and that she was rather more interested in confirming
the conclusion she had
previously reached that Ms. Shaw was not qualified." That prior job postings "did not
normally contain 'previous
experience' requirements" underscores that "Fry may have tailored the job posting to favor
Ms. Olson." That Olson
and Fry discussed job requirements prior to the job posting further underscores the
underlying impropriety.

The Union concludes that under the "'sufficient ability' standard for awarding
vacancies," the Grievant "was
contractually entitled to the position." It follows, the Union contends, that "the Arbitrator
(should) order that grievant
be awarded the position and be made whole for all lost wages, benefits, and rights she has
suffered as a result of this
violation of the labor agreement."

The Board's Reply Brief

The Board contends that its decision to award the position to Olson "is entitled to
great deference under the
collective bargaining agreement." General arbitral precedent establishes this assertion and
that precedent is "directly
applicable to this case, given the language of the collective bargaining agreement." More
specifically, the Board
argues "that a reasonable synthesis of Articles II and VI" demands that its determination of
job prerequisites or
employe qualifications should not be overturned unless the underlying decision "was
unreasonable under the facts,
or capricious, arbitrary, or discriminatory." Whether "the arbitrator might reach a different
conclusion if he were
in the role of the supervisor" is not relevant to the application of this standard.

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MA-9824

Contending that its right to establish job prerequisites is undisputed, the Board argues
that "an applicant must
meet the prerequisites for the position before seniority is at issue." Beyond this, the Board
posits that "the
prerequisites established . . . in this case were reasonable." With this as background, the
Board contends that it acted
reasonably in determining that the Grievant did not meet job prerequisites. Fry's expertise in
making this
determination is apparent, and entitles her conclusion to deference as a matter of contract and
of fact. Although the
Grievant was the senior applicant, she failed to supply written information establishing that
she met the requirements
of the job. Thus, Fry reasonably decided to telephone the Grievant to determine if she did
have the necessary previous
experience. Her determination "was made in real time" and "has to be reviewed that way."
Viewed from that
perspective, her conclusion that the Grievant's responses failed to establish the necessary
experience cannot be faulted.

The Board contends that a review of the evidence establishes that the Union has failed
to meet its burden of
establishing a contract violation. That Fry never informed the Grievant of the prerequisites
of the job cannot be held
against Fry and has no bearing on the determination whether the Grievant met the job
prerequisites. That Fry did not
ask the Grievant about her abilities establishes nothing of relevance to the grievance, since
Fry was obligated only
to determine whether the Grievant had relevant past experience. Nor is the intimation of a
conspiracy of any
demonstrated assistance in addressing the issues. Each testifying witness was credible and
honest. That Fry had
previously evaluated Olson as an employe establishes a "non-conspiratorial" basis for
evaluating her responses to the
two applicants. The intimation that Fry was biased for Olson or against the Grievant has no
evidentiary basis.

The Board asserts that the Union fails to recognize the contractual significance of its
right to establish
previous experience as a job prerequisite. Beyond this, the Union's assertion that the
Grievant had the necessary
experience or its equivalent is not well founded in the evidence. After an extensive analysis
of these points, the Board
states its position thus:

It is natural to sympathize with the Grievant's desire to be
appointed to the position, as well as her belief that her
family activities have prepared her to do the job. But that sympathy cannot and must not
result in evisceration of the
District's right under this collective bargaining agreement to seek previous experience and
require it as a prerequisite
of job applicants.

A review of the evidence as a whole demands, the Board concludes, "that the arbitrator
find no violation of the
Collective Bargaining Agreement and dismiss this Grievance."

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MA-9824

The Union's Reply Brief

The Union contends that the Board's use of precedent to establish a
standard of review, on closer
examination, establishes a series of standards, some of which are considerably broader than
that stated by the Board.
A review of relevant contract language establishes that the language at issue here is a
"sufficient ability" clause. The
sole issue posed by that clause is "whether the grievant can do the job or not." The burden
to establish a lack of
qualifications falls on the Board, and "the evidence demonstrates that the grievant is more
than minimally qualified
for the job."

That Fry's conclusion should be afforded deference can be accepted, but cannot
obscure that "the supervisor
had obtained very little objective evidence before she disqualified the grievant from further
consideration." It is not
necessary to doubt Fry's credentials in the field of elementary education to note that she
never seriously attempted
to probe whether the Grievant had previous experience meeting the requirements of the job.
More specifically, the
Union notes that Fry did no more than consult an outdated job application then make an
unannounced phone call to
the Grievant during which she posed "three jargon-laden questions in the areas that the
supervisor felt the grievant
was lacking." This did no more than confirm a pre-existing bias for Olson. That Fry made
her decision "in real time"
cannot obscure this fundamental failure "to fairly determine the abilities of the Grievant."

The Board's emphasis that the contract establishes a two-step evaluation procedure
should not be accepted.
The establishment of job prerequisites cannot be meaningfully distinguished from an
assessment of employe
qualifications. Nor does requiring a single, and even handed evaluation of qualifications
"eviscerate" the Board's
authority:

The Employer's interest is in having competent employees
performing available jobs. How employees come by
that competency is not particularly an employer interest.

Nor can characterizing the Union's contentions as a "conspiracy theory" establish
anything beyond "name-calling."
To say Fry "had a pre-conceived notion of the grievant's abilities," says little more than that
she had a human failing.
Nevertheless, the Union argues that "the fact remains that she did a very poor job of
evaluating the qualifications of
the grievant."

The Union concludes that the grievance must be sustained, and that an appropriate
make whole remedy must
be ordered.

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DISCUSSION

I have adopted the Union's statement of the issues as that appropriate to this record.
The parties agree that
the issue on the merits poses the relationship of Articles II and VI. The parties differ,
however, on which specific
portions of those articles control the outcome of the grievance.

The Union's arguments pose the interpretive issue as a direct conflict between Article
II, Section 1(J), the
second sentence of Article VI, Section 1 and the first sentence of the second paragraph of
Article VI, Section 4. Put
more succinctly, the Union contends the issue on the merits is whether the Grievant is
qualified for the job. If she
is, Olson's claim for the position rests on manufactured facts which cannot obscure a tenuous
contractual claim. Fry's
preference for Olson should not, under this view, be permitted to gut the preference for
seniority stated in Sections
1 and 4 of Article VI.

Viewed in isolation, this aspect of the interpretive issue favors the Union's view.
The
Board's authority to
assess qualifications under Article II, Section 1(J) is limited by the provisions noted above.
Olson's arguably superior
qualifications for the position cannot obscure that if the Grievant is qualified to do the work,
she is entitled, under
the first sentence of the second paragraph of Article VI, Section 4, to "the first opportunity
to qualify for the
vacancy."

The difficulty with the Union's argument is that it cannot be viewed in isolation, and
other contract terms
govern this dispute. More specifically, the final sentence of the first paragraph of Article
VI, Section 4 states that:
"Only those applicants who meet the prerequisites for the position will be considered." The
Grievant lacks at least
two of three "Previous experience" requirements noted in the job posting. The fundamental
flaw in the Union's
interpretation is that the Grievant can be considered to meet the "prerequisites" of the
position only if the District's
attempt to set prior school experience as a prerequisite can be considered contractually
infirm. Because it cannot be
so considered on these facts, the grievance has been denied.

The final paragraph of Article II establishes the limits to the Board's ability to set
"prerequisites" of a
position. More specifically, that provision demands that job prerequisites be set in a "fair
and reasonable manner,"
and that they "shall not . . . conflict with" other "provisions of this Agreement." It is
arguable that prior school
experience is not a necessary prerequisite for a Kindergarten Aide position. This does not,
however, establish a basis
upon which to label such a requirement "unfair" or "unreasonable." Fry's conclusion that
setting the experience
prerequisite would avoid past "trial and error" experiences with filling positions and would
assure that a teacher would
not have to train the Aide cannot be dismissed as unreasonable.

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Nor can Fry's conclusion be said to conflict with other agreement provisions. Olson
was the senior applicant
who met the prerequisites set by the posting. Thus, there is no apparent conflict with the
seniority references of
Article VI, Section 1. It can be noted that the experience requirement is not stated as
specifically in the job
description as in the posting, but the issue posed here is contractual interpretation and the
governing portion of Article
VI, Section 4 is addressed to the posting process.

In sum, the Board's preference for Olson can be considered contractually infirm only
if its requirement of
previous school experience for this position can be considered to conflict with other
agreement provisions or can be
characterized as unfair or unreasonable. In my opinion, no conflict within agreement
provisions exists. The
prerequisite, whether or not I would agree with it as a matter of educational or employment
policy, cannot be
characterized as unfair or unreasonable. Because the Grievant lacks the experience required
in the job posting, the
Board's refusal to consider her a qualified applicant cannot be faulted.

Before closing, it is appropriate to tie this conclusion more closely to the parties'
arguments. It should be
stressed that the conclusion stated above is no reflection on the Grievant's potential as an
Aide. The evidence would
indicate she meets the first, second and seventh requirement stated by the job posting. There
is no evidentiary basis
to indicate she could not meet the third requirement. The Union's argument that her life
experience meets the fourth
requirement is sound. Thus, the conclusion stated above rests only on her lack of prior
school experience. My
conclusion that the final sentence of the first paragraph of Article VI, Section 4 grants the
Board the authority to hold
this experience as a prerequisite dictates the denial of the grievance, not any deficiency in the
Grievant's testimony.

The parties dispute the appropriate "type" of seniority clause posed here and the
appropriate standard of
review under arbitral precedent. Whether it is helpful to generally "type" a contractual
clause to interpret it is
debatable. More significantly here, it is necessary, under Article II, to give meaning to all
of the disputed contract
terms. However the seniority clause is typed, meaning must be given to the final sentence of
the first paragraph of
Article VI, Section 4. Similarly, whether arbitrators find an "arbitrary and capricious" or a
"reasonableness" standard
appropriate is less significant than the terms of the final paragraph of Article II, which
demand that the Board's
management rights be exercised in a "fair and reasonable manner."

The degree of deference appropriate to Fry's conclusions is a potentially vexing
issue.
Here the contract
addresses the point. Her conclusion that prior school experience can be considered a
prerequisite to the Kindergarten
Aide position cannot be dismissed as unreasonable. This is the case, in my opinion,
whatever her credentials as an
educator.

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MA-9824

The Union forcefully argues that the process was rigged in Olson's favor. That
Olson
benefited from a
requirement which could have precluded her original hire cannot be lightly dismissed. As
the Union points out, it
is not necessary to determine Fry acted in bad faith to conclude that her bias for Olson
tainted the process. The
difficulty with the Union's position is that a contractual violation defines the taint to the
process. Unless the
requirement of prior school experience can be dismissed as unreasonable, the process has no
contractual taint.
"Superior" qualifications did not win Olson the position. She had the experience the
Grievant lacked. Any
predisposition on Fry's part has no bearing on this point. That the Grievant is a sympathetic
applicant complicates
the picture. Contractually speaking, however, it cannot change the picture. The prerequisite
asserted here can also
serve to filter out unsympathetic applicants.

Similar considerations apply to the Union's concerns with the July 24 phone call.
Those arguments
persuasively question how objectively Fry assessed the Grievant as an applicant. The
problem with the arguments
is that the phone conversation was not an interview relevant to a weighing process, but an
attempt to determine
whether the Grievant met the job prerequisites.

That the Board has not uniformly required past school experience does undercut its
assertion that such
experience must be considered a prerequisite here. Neither party asserts this prior
experience can establish a binding
practice. More to the point, Fry's contention that this prior experience highlights the
inadequacy of earlier hiring
efforts stands unrebutted.

AWARD

The Board did not violate the collective bargaining agreement when it denied the
Grievant the kindergarten
aide position at Doudna School.